William Patry on How to Fix Copyright

byStephan KinsellaonJanuary 9, 2012

There is nothing wrong with incrementalism. Advocates of private property and free markets want patent, copyright, and other forms of IP to be abolished, but we are also in favor of measures short of abolition that move in the right direction–shortening terms and penalties, etc. Still, it’s frustrating when some commentators identify real problems with IP law but fail to make a more fundamental diagnosis. A case in point is free market economist Alex Tabarrok, who has good criticisms of the existing patent system but who nonetheless resists calls for patent abolition and advocates other statist measures to supplement or replace the statist patent system, like multi-billion dollar taxpayer-funded innovation prize systems.

In the field of copyright, we have Google attorney and copyright lawyer William Patry, whose recent book is How to Fix Copyright (see his recent Volokh post, How to Fix Copyright, Part I). Our mutual publisher, Oxford University Press, sent me a copy a while back. Unfortunately, although Patry makes some useful criticisms of the existing copyright system, his diagnosis and prescriptions are confused (though not as bad as those of Dean Baker, who, like Tabarrok in the field of inventions, recommends taxpayer funded multibillion-dollar “artistic freedom vouchers” to promote artistic creation).

Patry realizes the current copyright system is rife with problems. But he is not willing to support copyright abolition. It is not for failure to understand the law. He is a renowned copyright scholar, author of the seminal Patry on Copyright treatise. Legal credentials are not enough, however. One must have a firm grasp of economics, and one’s political views must be rooted in the propertarian principles that inform libertarian analysis. Given a grounding in Austro-libertarian analysis, it is easy to see that the only legitimate laws are those that enforce individual property rights, and that the purpose of property rights is to permit productive and conflict-free use of scarce resources. The function of law is to make peaceful, productive use of scarce resources possible, by assigning owners to these resources based on Lockean homesteading principles. Copyright law, like patent law, is a grant of monopoly privilege–the remnant of mercantilism and censorship regimes of the past and is antithetical to the free market, competition, and private property.

In the end, Patry’s latest book is not much different than his previous Moral Panics and the Copyright Wars, which I criticized here. On p. 5 he says copyright law is “necessary”; on p. 11 that “copyright laws can serve valuable purposes” (whatever this means); on p. 262 he says that “Going after the very small number of those who are doing most of the harm is entirely justified.” Why? Elsewhere he derides the proponents of stronger copyright for failing to provide evidence that stronger copyright law is needed. Where is Patry’s evidence that any copyright law is “needed”? Where is his normative argument that these laws are justified? He has none, and does nothing to produce such an argument other than repeat commonplace bromides. And so his recipes for change are tepid: reduce the term, but not to zero!

For example, in his blog post noted above, about his new book, he writes:

The title indicates that the book is both prescriptive – offering solutions (this is the “how to” part) – and attempts to be constructive: I want to fix, that is, improve copyright law’s effectiveness. I believe laws are tools, not ends in themselves, and that we should measure, empirically, their effectiveness against their stated objective.

Note the scientism and legal positivism of this approach. It poses as if it’s “scientific” because it is urges looking at the empirical evidence to see if the law is effective at meeting its “stated objective.” There are a number of problems with this approach. First is the unstated (and unscientific, scientistic) assumption that the only scientific approach is to look at evidence. This is the confused approach of monism and positivism (a better approach is the dualistic methodology of Mises; see his The Ultimate Foundation of Economic Science; Hans-Hermann Hoppe, Economic Science and the Austrian Method; and my post C.P. Snow’s “The Two Cultures” and Misesian Dualism). In fact it is impossible to sum up the utilities of such a law, as Rothbard explained in “Toward a Reconstruction of Utility and Welfare Economics.” All we know is that copyright violates some people’s property rights, even as it enriches others. Why does the later justify the former? In any case, to assume it does justify it is not a neutral, scientific approach but a value-laden, normative one.

Further, why does Patry assume that what matters is the law’s “stated objective”? Some laws are evil, such as laws ordering Japanese Americans to report to concentration camps or the Nazi laws aimed at Jews. The objectives or purpose of legislation, whether “stated” or not, may themselves be wicked. So why would the law’s legitimacy be based on how “effective” the law is at fulfilling the goals of its enactors? I, for one, would prefer that copyright law, like the drug war, to be as ineffective as possible. Further, legislated law is not organically developed like common law is, in response to real disputes and aiming at a just solution. Legislation is simply the decree of a group of politicians, each with often conflicting stated and private agendas. To speak of the “objective” of such a statute as if it can be objectively determined is naive. (See, on this, John Hasnas, The Myth of the Rule of Law; also my Legislation and Law in a Free Society and Another Problem with Legislation: James Carter v. the Field Codes.)

Patry goes on:

We do not inherently need strong laws or weak laws anymore than we inherently need strong or weak medicines. We need laws and medicines that are fit for their purpose. What are copyright laws supposed to do? The most popular things copyright laws are said to do are: (1) provide incentives for authors to create works they would not create in the absence of that incentive; (2) provide the public with access to those works; and, (3) in some countries, provide respect, via non-economic rights, for those who create cultural works.

The analogy to medicine is problematic. We humans acknowledge the value of medicine because of its usefulness at promoting human health and well-being, which we value. Those who discuss the efficacy of a given medicine already agree on the general goal of promoting human health. But here Patry takes for granted that people discussing the efficacy of copyright law will all agree on the enumerated “purposes” of copyright that he identifies. It is “said” that a main purpose of copyright is to provide incentives to create? So what if it’s “said”? Said by whom? Well some of us “say” that a main purpose of copyright is to enrich Big Media and to provide a means to certain people and companies that allows them to legally censor other people. Why do we want this purpose to be efficiently fulfilled by copyright law? I don’t.

Probably the most valuable part of the book is Patry’s argument that since the current copyright regime is so obviously broken, and since we have paltry evidence for extending the current copyright system, that no new copyright law should be enacted until further studies are done. If this advice were heeded, at least measures like ACTA and SOPA could be slowed down. But in the end, Patry’s 336 page book is 335 pages too long. All it really needs is one line: “get rid of it.” That’s how to fix copyright. Asking how to fix copyright is like asking how to fix taxes or how to fix slavery. The obvious answer is: get rid of it. Not to call for “more studies.”

Patry assumes that one reason copyright seems to be “broken” now is that it was designed for the pre-digital age. Thus, “To be effective, our copyright laws must be based on the world of digital abundance.” This misconceives the nature of the problem. The problem with patents is not patent trolls or software patents. It is the patent system itself. The problem with copyright is not that we now have a digital age–though it is true that in our digital age the injustice of the copyright system is more visible and has been magnified. It has been magnified simply because the Internet is the world’s biggest copying machine, so people are doing more copying now. A law aimed at stopping people from copying, emulating, learning, communicating, competing, and using information will of course come into conflict with the copying machine known as the Internet. But there is no way to “fix” an anti-copy law to make it compatible with the Internet and “digital abundance.” The Internet and digital culture and commerce will always be in tension and conflict with copyright of any form. Copyright should be abolished. But as noted, there is nothing wrong with incremental improvement, either. How should copyright be changed to make it less incompatible with property rights, free and open culture, and the digital age? Easy: stop enacting new copyright laws (as Patry says), stop increasing penalties for copyright infringement, don’t “crack down” on piracy; instead, reduce copyright penalties, shorten the copyright term, and require active registration instead of the automatic grant of copyright we have now. Here are a list of obvious reforms I proposed in How to Improve Patent, Copyright, and Trademark Law:

Require active registration and periodic re-registration (for a modest fee) and copyright notice to maintain copyright (today it is automatic, and it is often impossible to determine, much less locate, the owner), or otherwise make it easier to use “orphaned works“

Provide an easy way to dedicate works to the public domain — to abandon the copyright the state grants authors

Eliminate manifestly unjust provisions of the Digital Millennium Copyright Act (DMCA), such as its criminalization of technology that can be used to circumvent digital protection systems

Provide that incidental use (e.g., buildings or sculptures appearing in the background of films) is fair use

Reduce statutory damages

Requiring registration would make the copyright system “opt-in,” similar to how the patent system works now, where you get no patent for your invention if you do not actively apply for it. But an incremental step in this direction would be to first make the copyright system opt-OUT. As it is now, copyright is granted automatically, and you cannot get rid of it, as I explain here.

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Hi Stephen, thanks for reviewing my book. I appreciate your are explicit in your premise that for any analysis to be valid in your view, “one’s political views must be rooted in the propertarian principles that inform libertarian analysis. ” Although I do rely on Hayek and von Mises in different points in the book, those are not my political views, and so I appreciate why you would find my book lacking per se. The political reality, though is that there is zero chance of abolishing copyright, and zero chance of your views commanding even minority support in any government. One is left, then, with attempting to make things work as effectively as they possible and that is what the book tries. I disagree that I don’t rely on economics. The discussion of the appropriate term of protection relies on the economist’s brief in the Eldred case; the discussion of global markets relies on a great deal of economic analysis.

You might follow your own advice on writing about the issue: since apparently all one needs to say is “get rid of it” there is no need, under your own theory,for you to ever say more: if that is your advice to me, it should be good advice for you too. The rest of us, who acknowledge the political reality, will continue on, trying to make the best of things, imperfectly of course.

I’ve revised my post since you commented, to include more incremental suggestions.

Hi Stephen, thanks for reviewing my book. I appreciate your are explicit in your premise that for any analysis to be valid in your view, “one’s political views must be rooted in the propertarian principles that inform libertarian analysis. ” Although I do rely on Hayek and von Mises in different points in the book, those are not my political views, and so I appreciate why you would find my book lacking per se.

Actually I don’t see that you do rely on them much. You quote Mises etc., but your analysis does not rely on it that I can tell.

The political reality, though is that there is zero chance of abolishing copyright,

Yes, partly b/c people like you say it’s necessary. In any case, I realize abolition is unlikely, no doubt as slavery abolitionists did in 1776. That is why I have a list of incremental reforms that would be improvements. But you can’t head in the right direction if you don’t know where you are going.

and zero chance of your views commanding even minority support in any government.

Right. My hope is that encryption, the Internet, etc. will allow copyright to be abolished de facto, at least in part.

One is left, then, with attempting to make things work as effectively as they possible

make what “things work”? copyright law? I’d say that if it can’t be abolished then if one sees that it is evil, one is left with trying to evade it and defang it as much as possible with technological measures.

and that is what the book tries. I disagree that I don’t rely on economics.

Then why did you not include more of the economic discussion of Boldrin and Levine, which I alerted you to in our last interchange? They show using basically empirical reasoning that there is no case for copyright or patent.

You might follow your own advice on writing about the issue: since apparently all one needs to say is “get rid of it” there is no need, under your own theory,for you to ever say more: if that is your advice to me, it should be good advice for you too.

I have in fact written before on incremental measures, and have updated my post in this regard. In any case, this retort of yours does not even attempt to show that I am wrong in my opposition to copryight.

The rest of us, who acknowledge the political reality,

I acknowledge political reality. that is the only reason I comply with tax and copyright and narcotics laws, for example, that the criminal state foists on me.

will continue on, trying to make the best of things, imperfectly of course.

Having to abide by and live within the realities of a given system is not a justification for your endorsement of the legitimacy of copyright, Bill. Copyright is evil, and should be abolished. You have said nothing that tends to disprove this. All you have said is that it is the law now.

…one’s political views must be rooted in the propertarian principles that inform libertarian analysis.

The two are not inherently linked; in fact, propertarianism and libertarianism can come into conflict. Opposition to copyright on libertarian grounds requires no reference to propertarianism. That (and the shoe-horning in of homesteading) aside, I’m in full agreement.

Thanks Stephen for your revised and thoughtful post. I carefully read the suggestions you made in How to Improve Patent, Copyright, and Trademark Law:. I agree with all your suggestions. I have many of these in my book. But how is my making very similar suggestions in a book called How to Fix different from you writing a book called How to Improve. We are engaged in exactly the same process with almost the same title. The only difference I see is that you are ideological about the issues and I’m not.

Thanks, Bill. To the extent your incremental measures mean reducing copyright scope or protection, I am glad you are urging them. I am not sure what your argument is against ideology. We all have our principles.

Hi Stephan. I have nothing against principles and I admire you for sticking with yours. My only point, and maybe it was a small one, is that you and I come out very close to each other on specific recommendations, and were engaged in the same task: writing a book about how to reform the existing regime. Yet, my book is deemed by you to be faulty because it doesn’t share your ideology. If I were reviewing your book, I would judge it by what you set out to do: offer reforms. i wouldn’t judge it by what it didn’t set out to do. Indeed, I avoided ideology in my book (to the extent I can) precisely because the ideological battles around copyright are so fierce and the viewpoints so diverse. My hope was to provide so grounds around which a number of people from different ideologies might agree. I don’t say I succeeded, but that was my approach.

Bill, you make some good points. Perhaps I should focus more on where we agree than on where we do not. I am glad that a prominent copyright scholar such as yourself is calling for fairly radical change to the copyright system, and I especially appreciate your call for a moratorium on any new copyright law (fresh on the heels of the unconstitutional signing of ACTA…).

I realize that we both understand copyright law, understand a lot of the problems it causes, and both are in favor of curtailing the extent and scope of copyright in an effort to ameliorate some of these problems. While I agree with most of your ideas about the direction of reforms, I simply disagree with some of the reasoning you present in the book when you seek to diagnose the problem. You see the problem being copyright was not designed properly for the current, digital age. This makes it less “effective” than it otherwise would be. I don’t think this is right. I think copyright is inherently incompatible with freedom of expression, creative remixing, digital information and the Internet.

You say several times that copyright is sometimes justified. I simply disagree. You make this positive statement in your book. Don’t you think that opens it up for criticism by people, like me, who disagree? Just because your book also suggests policy reform in a direction I agree with does not mean it’s wrong of me to judge part of your book by what you actually do say. If you did not want to subject yourself to criticism on these grounds, why did you include it? I don’t see that you need to affirm the basic legitimacy of copyright in your effort to call for choking it back. You could have said that opinions differ about whether we need any copyright at all, but that you are not calling for abolition (in part because that would be a political non-starter, in part because you are perhaps not persuaded yet by abolitionists’ arguments)–but that you are calling for reasonable reforms that both opponents and proponents of copyright should be able to agree to. I’m not sure how your argument for reforming copyright requires you to argue that copyright is good or necessary. But if you do make this argument, you have to expect that people who disagree with you on this might point this out.

Still, I am glad we are both pushing in the same general direction, even if for somewhat different reasons.

I am curious if you think there is any merit to the argument that current copyright law is unconstitutional since it seems to pretty clearly infringe on free speech/press rights in the First Amendment–and, therefore, that since the First Amendment was ratified *later* (1791) than the copyright clause (1789), that the First Amendment trumps the Copyright clause or copyright legislation enacted pursuant to it…? Do you think there is any merit to this argument? I make it here: http://c4sif.org/2011/11/copyright-is-unconstitutional/

Unfortunately… there have been multiple cases that have addressed the question of whether or not the First Amendment supersedes copyright… and the Supreme Court is pretty clear that it does not. In fact, there are rulings that claim (ridiculously), that copyright enables the First Amendment, calling it “the engine of free expression.” So… it’s been tried and failed. There are some good books on the subject, though. Mainly “No Law” by Lange/Powell and “Copyright’s Paradox” by Netanel.

While these aren’t argued on the basis of the 1st amendment coming later, given the long line of jurisprudence on the conflict between the two things, there’s simply no way the courts will give any credence whatsoever to that argument.

You’ve written an excellent review Stephan, and made some incisive points concerning copyright’s nebulous foundations that should give pause to those who hand wave at them as if they’re obviously the same natural bedrock as underlying any other law.

I think I agree with William Patry though, that it somewhat undermines your own argument if you propose such compromises as a reduced copyright term. Why on earth is anyone suddenly going to refrain from sharing their own culture simply because the work they share tomorrow has a 10 year term of copyright ‘protection’ on it as opposed to one a century long?

Surely it would be better to suggest ethical improvements to copyright, not politically plausible compromises? I’m thinking that exempting individuals from infringement whilst leaving corporations subject to it is at least an ethical improvement even if the resulting corporate monopoly remains a net economic burden upon society – at least it only constrains immortal corporations.

What with the gradual enlightenment initiated by SOPA, I think you should leave the political compromises to those copyright supporters who will soon suggest them of their own accord – anything to keep their privilege on the statute books. It is akin to suggesting that with abolition of slavery politically untenable in the foreseeable future, that perhaps a reasonable interim compromise is to legislate that slaves should at least be given two days of rest, a minimum standard of healthcare, and compulsory retirement/manumission at age 60. Leave unprincipled compromises to the unprincipled.

The Center for the Study of Innovative Freedom (C4SIF) is dedicated to building public awareness of the manner in which laws and policies impede innovation, creativity, communication, learning, knowledge, emulation, and information sharing. We are for property rights, free markets, competition, commerce, cooperation, and the voluntary sharing of knowledge, and oppose laws that systematically impede or hamper innovation, especially those enforced in the name of defending “intellectual property,” such as patent and copyright; these should be radically reformed or entirely abolished.

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